Mark Pestronk
Q: I want my attorney to draft a contract that is somewhat complicated and outside my attorney's usual practice, such as an agreement between my agency and a corporation for an incentive trip. What's the best way to go about getting my attorney to do it without great expense for me? Should I try to write the contract first, and then have my attorney edit it? Should I sit down with my attorney and have him or her take notes?
A: The two methods that you suggest, trying to draft it yourself or asking your attorney to take notes in a meeting, will probably be expensive and frustrating.
The trouble with trying to draft it yourself is that your attorney will need to edit it, and depending on your contract-drafting skills, the process might take him or her a lot more time than if the attorney tried to write it from scratch.
The trouble with a meeting and note-taking is that you are probably adding two unnecessary steps: the time spent in the meeting and the time it will take you to revise the attorney's draft, which is bound to be incomplete if it is based only on the notes of an attorney unfamiliar with the subject matter.
Instead, draft a document such as an email that has three parts: your agency's duties, the client corporation's duties and how the money flows.
The first two parts should be simple, bullet-point lists of duties, such as "negotiate the group contract with the hotel," under the list of your duties. The third should be a description of exactly what, when and how much the corporation is going to pay.
Include the parties' full legal names. Don't use industry jargon such as "consumed room nights," unless you define your terms.
From your email, the attorney should be able to draft the contract fairly easily. He or she may need to ask you some follow-up questions, but you can be certain that the contract will cover everything you thought of.
If you really want to try drafting the contract yourself, here are some tips to ensure that the document is well done.
Use the active voice instead of the passive voice, so you know which party is responsible for what task. For example, don't say, "At the end of the trip, an audit will be conducted," as it will be unclear who performs the audit. Say, "Agency shall conduct an audit."
Don't use different words or terms to mean the same thing, as the law presumes that you are referring to different things. If you refer to "hotel," "property," "accommodation supplier" and "resort" in the same contract, you mean four different things. Unlike in creative writing, repetition of nouns is a virtue.
Avoid "etc." and "and the like," as in "airlines, hotels, car rentals, etc.," as a court would have to guess what you mean.
Use "shall" when referring to a duty of a party. In contracts, "will" merely refers to a prediction of what will happen in the future.
Use short sentences and short paragraphs. Give each section a name and number, and give each paragraph a number or letter.